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USCIS Issues Draft Template for L-1B Visa Evidence Queries

Members may download one copy of our sample forms and templates for your personal use within your organization. Please note that all such forms and policies should be reviewed by your legal counsel for compliance with applicable law, and should be modified to suit your organization’s culture, industry, and practices. Neither members nor non-members may reproduce such samples in any other way (e.g., to republish in a book or use for a commercial purpose) without SHRM’s permission. To request permission for specific items, click on the “reuse permissions” button on the page where you find the item.

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U.S. Citizenship and Immigration Services (USCIS) released a draft request for evidence (RFE) template for multinational employers seeking to transfer employees with specialized skills from their foreign operations to the United States using an L-1B intracompany transferee visa.

The RFE serves as a sneak peek for employers to see what additional information the agency will ask for from those who file Form I-129 and reflects the March 24, 2015, draft policy addressing the qualifying criteria for L-1B visas. USCIS is currently reviewing the feedback on the proposed policy, which is scheduled to become effective Aug. 31, 2015.

Employers must prove that the employee to be transferred possesses “specialized knowledge” to qualify for an L-1B visa and will use that knowledge in their U.S. role. Specialized knowledge is defined as “special knowledge possessed by an individual of the petitioning organization’s product, service, research, equipment, techniques, management, or other interests and its application in international markets, or an advanced level of knowledge or expertise in the organization’s processes and procedures.”

L-1B filings have come under increased scrutiny by USCIS, and the agency has issued an increasing number of RFEs and denials around claims of specialized knowledge. The denial rate for L-1B petitions was 35 percent and the RFE rate was 45 percent in fiscal year 2014, according to the National Foundation for American Policy.

“Please note that merely stating the beneficiary’s knowledge is somehow different from others or greatly developed does not, in and of itself, establish that he or she possesses specialized knowledge. Ultimately, it is the weight and type of evidence that establishes whether the beneficiary possesses specialized knowledge,” the draft document says.

The employer must submit documentation on the employee’s training, education and work experience to establish that the employee has specialized knowledge. Evidence often includes a letter from the foreign entity describing the employee’s specialized knowledge duties, the percentage of time spent on each duty, the minimum amount of time required to attain this knowledge and an explanation of how the individual’s knowledge compares to that of the organization’s similarly employed workers.

The employer may also submit training records, payroll documents, organizational charts, correspondence, awards, patents or contracts related to the employee’s contributions to the company as evidence of his or her specialized knowledge.

The employer also must show evidence that the position in the U.S. requires specialized knowledge. This should include a detailed description of the services to be performed, explaining the specific nature of the industry or field involved, the nature of the employer’s products or services, the specialized knowledge required to perform the beneficiary’s duties, and the need for the beneficiary’s specialized knowledge.

Members may download one copy of our sample forms and templates for your personal use within your organization. Please note that all such forms and policies should be reviewed by your legal counsel for compliance with applicable law, and should be modified to suit your organization’s culture, industry, and practices. Neither members nor non-members may reproduce such samples in any other way (e.g., to republish in a book or use for a commercial purpose) without SHRM’s permission. To request permission for specific items, click on the “reuse permissions” button on the page where you find the item.